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2012 DIGILAW 435 (HP)

Ram Lal v. Veena Dogra

2012-08-16

V.K.AHUJA

body2012
JUDGMENT : V.K Ahuja, J. The present petition under article 227 of the Constitution of India has been filed by the petitioner/plaintiff against the order dated 21st July, 2009 passed by the learned Civil Judge (Junior Division), Court No. 8, Shimla vide which the application under Order 6 Rule 17 C.P.C filed by the petitioner was dismissed. 2. A notice of the petition was issued to the respondents. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. Briefly stated, the facts of the case are that the petitioner/plaintiff has filed a suit for declaration that he is the owner in possession of the land measuring 20.58 sq. meter as described in the plaint and he has also challenged the sale deed effected by defendant No. 2 in favour of defendant No. 1 being illegal void and inoperative against the rights of the plaintiff. During the pendency of the suit, the application under Order 6 Rule 17 C.P.C was filed by the petitioner/plaintiff claiming the following reliefs: "In case during the pendency of the suit, the plaintiff is forcibly dis-possessed from any portion of the suit land or found out of possession of the land, a Decree for possession be passed in favour of the plaintiff". "In the alternative, the plaintiff prays that in case the plaintiff is found to be out of possession of any portion of the land or the defendant No. 1 forcibly dispossess the plaintiff from any portion of the suit land, a Decree for possession be passed in favour of the plaintiff and against the non-applicant defendant No. 1." 5. The petition was opposed by the learned counsel for the respondents on the ground that the relief in question should have been claimed by the plaintiff at the time of filing of the suit secondly, on the ground that the land in question is a passage and no exclusive possession of the same can be handed over to the plaintiff even if he is held entitled to the relief claimed by him. 6. 6. The necessity of filing the application arose on the ground that in case the defendant forcibly takes the possession during the pendency of the suit or is found in possession of the land, the decree for possession was claimed in favour of the plaintiff but in case the defendant is found in possession, the plaintiff will be left with no remedy in case the amended application filed by him is not allowed. In so far as the question is concerned that the land in question is a passage and no exclusive possession can be restored to the plaintiff even if he is held entitled to the relief claimed by him. All these questions are to be determined by the learned trial Court during the pendency of the suit or at the time of final judgment and in case any such question arises, it will be for the learned trial Court to consider the same and pass appropriate orders in regard to the relief claimed by the plaintiff. 7. In view of the above discussion, it is clear that the amendment of the plaint was necessary for just determination of the case and as such the prayer made by the petitioner deserved to have been allowed by the learned trial Court. The impugned order passed by the learned trial Court is set-aside and the application for amendment filed by the petitioner stands allowed accordingly. Respondents shall be given an opportunity to file reply and appropriate issue which arises from the pleading of the parties shall be framed since the case is at the stage of evidence of the plaintiff. 8. In view of the above discussion, the petition is allowed. I have been informed by the learned counsel for the parties that Court No. 8 at District Court, Shimla is not functioning. The case is therefore, assigned to Court No. 7 at District Court, Shimla for disposal and the learned trial Court shall proceed with the case in accordance with law. It was also contended by the learned counsel for the respondent that it is a joint land of the parties. All these questions shall be considered by the learned trial Court. The parties are directed to appear before the learned trial Court on 20.9.2012. The petition stands disposed of accordingly.